RTI: Maximum Disclosure; Minimum Exemptions

Ghanaian civil society activists through the RTI Coalition has faulted some provisions of the country�s Right to Information (RTI) Bill presently before Parliament and called for their amendment. The group in a statement said that a critical review of the bill reveals that while Clauses 2 and 3 provide for proactive disclosure, the information that should be proactively disclosed is rather limited. International RTI standards revealed that exemptions should be narrowly formulated so as not to defeat the purpose and object of access to information. Therefore, Ghanaian Civil Society Activists through the RTI Coalition recommends that all exemptions in the Bill should be subjected to �a harms test�: That is to say, exempt information will remain exempt where it is proved that the harm in disclosure is greater than the public interest in disclosure. This is vital to include as the Constitution specifically states that the right to information is �subject to such qualifications and laws as are necessary in a democratic society�. Hence the exemptions need to meet this standard. The Bill needs to do away with blanket exemptions as those currently exempting all information in the office of the President, the Vice-President; information relating to the cabinet, information relating to law enforcement, public safety and national security. The harms test should be applied to all exemptions. While clause 18 provides a public interest override, it sets out categories of public interest, and yet public interest may go beyond the listed categories. Hence Clause 18 should be opened up (e.g. by stating that �instances in which exempt information shall be disclosed �include the following�) and not restrictive. TIMELINES WITHIN THE BILL In an interview with Ghana News Agency, Nana Oye Lithur, Executive Director of Human Rights Advocacy Centre said one of the principles of the right to information is that information requested for from a public body should be provided in a timely or expeditious manner. This is in recognition of the fact that information is needed for a specific purpose within a specific time. The times stipulated within the Bill defeat this principle as well as the right to information. She said the twenty-one working days in which officer shall notify one of decision on application (Clause 23(1); 14 days within which to give access (Clause 23 (3) (a); 21-days working days extension at the discretion of the officer (Clause 26) and 3-months extension where the Minister so permits; 30-days within which to notify the applicant on the decision on extension (Clause 26 (3) need urgent review. In addition, to these long time lines, applicants need to give a reason for the application when it is urgent, Clause 1 (4) in the Bill, stressing that �this is unreasonable considering that it is the duty of the government to avail information and one should not give a reason for exercising this right�. THE TIMELINES IN THE BILL NEED TO BE SHORTENED. Nana Oye Lithur therefore suggested that the 21 working days within which the information officer should decide whether or not he or she will give you the information should be done away with. She said upon application, the Information Commissioner should be given 10 working days to handle the application. The 30-day time limit to notify the applicant under Clause 26 (3) of the Bill is inconsistent with Clause 26 (2) of the Bill; Revise Clause 26 (3) of the Bill. INCLUSION OF PRIVATE BODIES According to Mr Akoto Ampaw, a Private Legal Practitioner, the scope of the Bill is rather limited. It should be a law that applies to all Public Bodies and not government agencies (as it currently provides). The term �government agency� is too restrictive and excludes private bodies and chieftaincy institutions. The preamble should replace the term �government agency� with �public body� and add the term �private body� alongside the term �public body. He explained that private bodies which are, (i) owned, controlled or substantially financed directly or indirectly by funds provided by government, but only to the extent of that financing; or (ii) carrying out a statutory or public function, but only to the extent of that statutory or public function; (iii) companies that are engaged in exploitation of natural resources should be brought under the Act. He said the RTI law should also contain a provision which allows for access to information from a private body where the information may assist in the exercise or protection of any right. The application may state the right which is sought to be protected or exercised. There is no need for the Minister to come up with a separate set of legislation for private bodies and yet the Act can clearly and simultaneously stipulate the obligations of the relevant private bodies. He said under Article 36 (8) of Ghana�s 1992 Constitution, it is clearly stated that: �the state shall recognise that the managers of public, stool, skin and family lands are fiduciaries charged with the obligation to discharge functions for the benefit respectively of the people of Ghana, of the stool, skin, or family concerned and are accountable as fiduciaries in this regard.� Mr Ampaw noted that to the extent that they carry out public functions and need to account to the people with whom they have a fiduciary relationship, chieftaincy institutions or traditional authorities should be included in the Act. Hence, they should included as part of the public bodies within the purview of the Act, but only to the extent of their fiduciary functions �information on royalties received, how such monies are spent among other issues. He suggested that these institutions should also designate information officers who would have the duty to provide such information to the public. FEES PAYABLE UNDER THE BILL Ms Caroline Nalule, Africa Regional Co-ordinator of Commonwealth Human Rights Initiatives in her contribution noted that fees payable under the Right to information law should not be such as would in effect deny one of his or her right to information. Information to be accessed under the law should be available in as inexpensive a manner as possible, the Bill is providing for different unjustifiable fees to be paid and restricts access where these fees are not paid. An application shall be accompanied by a relevant fee: Clause 19 (1) (f) in the Bill. Where the information officer decides to give access, the notice shall state the fees payable for dealing with the application, Clause 23(4)(d). Information can be denied where the required deposit or fee is not paid, Clause 23(6). Requires advance deposit if cost of dealing with application exceeds application fees, Clause 25 in the Bill. If advanced deposit is not paid, the agency can neglect request, Clause 25 (2) in the Bill. Denies applicant redress if deposit is unpaid, Clause 23 (6) in the Bill. If application is rejected, applicant is still coerced to pay without granted access, Clause 23 (4) (d) in the Bill. Minister of Justice determines fees for search, retrieval, preparing information, and postage, Clause 50 in the Bill. According to her the fees that should be emphasised by the law should be the actual cost of reproduction of the information requested. �Availing information is a duty of the government and not a business venture. �One should not be required to pay a fee upon lodging or filing an application a deposit fee�. One should not be required to pay a fee in relation to time spent by a body in searching for the information required. One should not be required to pay a fee where information sought is personal information. The requirement to pay an application fee for public information is absurd! The fees structure within the Bill should be consolidated in one section as it is currently scattered and would create room for abuse.